IN THE COMMITMENT OF RICHARD A. DUNSMORE, Appellant
Appeal from the 412th Judicial District Court Brazoria
County, Texas Trial Court Case No. 84023-CV
consists of Justices Lloyd, Kelly, and Landau.
Richard A. Dunsmore, attempts to appeal the trial court's
February 7, 2018 order denying his unauthorized petition for
release. This Court notified Dunsmore of our intent to
dismiss for lack of jurisdiction and invited a response
establishing that this Court has jurisdiction. Dunsmore filed
a response but has not demonstrated that we have
jurisdiction. We dismiss the appeal for lack of jurisdiction.
Dunsmore was convicted of sexual assault and attempted sexual
assault and sentenced to 7 years in TDCJ, and this Court
affirmed the conviction. See Dunsmore v. State, No.
01-10-00981-CR, 2012 WL 1249418 (Tex. App.- Houston [1st
Dist.] Apr. 12, 2012, pet. ref'd). Six months before his
scheduled release date, the State petitioned to have him
civilly committed under the Sexually Violent Predator
statute. See Tex. Health & Safety Code §
841.003. After a jury trial, he was adjudicated a sexually
violent predator. The statute provides for appeal from an
order determining status as a sexually violent predator, and
Dunsmore appealed that order to our Court. See In re
Commitment of Dunsmore, 562 S.W.3d 732, 736 (Tex.
App.-Houston [1st Dist.] 2018, no pet.) (affirming).
then filed an "unauthorized petition for release,"
which the trial court denied on February 7, 2018, concluding
that the petition was frivolous and that Dunsmore had not
shown probable cause that his "behavioral abnormality
has changed such that he is no longer likely to engage in a
predatory act of sexual violence." Dunsmore seeks to
appeal this order.
determine whether we have jurisdiction over the denial of
Dunsmore's unauthorized petition for release, we must
turn to Chapter 841 of the Health and Safety Code. When
construing statutes, our primary objective is to give effect
to the Legislature's intent as shown by the statutory
text. See Colorado Cty. v. Staff, 510 S.W.3d 435,
444 (Tex. 2017). If the text is clear, the text is
determinative of the Legislature's intent. See
id. When considering the language of the particular
statutory provisions at issue, we do not consider them in
isolation but view them in the context of the statute as a
whole. See Jaster v. Comet II Constr., Inc., 438
S.W.3d 556, 562 (Tex. 2014).
statute provides for appeal from the initial determination
that a person is a sexually violent predator. See
Tex. Health & Safety Code § 841.062(a). Once a
sexually violent predator is committed, Chapter 841 provides
for periodic commitment reviews. For example, Section 841.101
provides for a biennial examination. Id. §
841.101(a). Chapter 841 also includes provisions for the
filing of two types of petitions for release: authorized and
unauthorized. See id. §§ 841.121, 841.122.
filed an unauthorized petition for release. The statute does
not provide for an appeal of the trial court's ruling on
an unauthorized petition for release, or of any trial court
ruling other than the initial determination of sexually
violent predator status. Courts have addressed appeals of
orders under the sexually violent predator statute, other
than initial commitment orders, and generally determined that
they are interlocutory and not appealable. See In re
Commitment of Adams, 408 S.W.3d 906, 909 (Tex.
App.-Beaumont 2013, no pet.) (dismissing appeal from order
modifying commitment order as interlocutory and not
appealable); In re Commitment of Cortez, 405 S.W.3d
929, 932, 936 (Tex. App.- Beaumont 2013, no pet.) (dismissing
appeal of modification order because statute does not provide
for appeal, order contains no finality language, and further
holding that appellant had not shown himself entitled to
mandamus relief); In re Commitment of Richards, 395
S.W.3d 905, 909-10 (Tex. App.-Beaumont 2013, pet. denied)
(dismissing appeal from order after biennial review as
interlocutory and not appealable because the order did not
follow trial on the merits or reflect trial court intent that
order was final).
court has ruled on the appealability of an order denying an
unauthorized petition for release and concluded that it is a
final appealable judgment. See In re Commitment of
Keen, 462 S.W.3d 524, 526 (Tex. App.-Beaumont 2015, no
pet.). In reaching its decision, the court determined that
the order concluded a "discrete phase of the [sexually
violent predator] proceeding" and disposed of all
parties and claims. Id.
determination that a ruling is a final judgment because it
concludes a "discrete phase" is a unique exception
to the "one final judgment rule" that has been
applied in probate and guardianship cases to permit appeals
of discrete issues. See In the Guardianship of
Macer, 558 S.W.3d 222, 226 (Tex. App.-Houston [14th
Dist.] 2018, no pet.); In re Guardianship of Miller,
299 S.W.3d 179, 184 (Tex. App.-Dallas 2009, no pet.). This
probate and guardianship exception to the "one-judgment
rule" has been held to be "necessary because of the
need to 'review controlling, intermediate decisions
before an error can harm later phases of the
proceeding.'" Miller, 299 S.W.3d at 184
(quoting De Ayala v. Mackie, 193 S.W.3d 575, 578
(Tex. 2006)). The exception has also been applied to discrete
orders in receivership proceedings. See Art Inst. of
Chicago v. Integral Hedging, L.P., 129 S.W.3d 564, 571
(Tex. App.-Dallas 2003, no pet.) (citing to Huston v.
FDIC, 800 S.W.2d 845 (Tex. 1990)).
appears to be the only case to extend this exception to an
order concerning a sexually violent predator, and the
Keen court does so without explanation or authority.
Absent any discussion or citation to authority supporting
extension of this unique exception to an order under the